Assisted Suicide and Passive Euthanasia

Introduction

Let us first define the term “passive euthanasia.” It is the practice of putting those who have terminal, unpleasant, or distressing diseases or impairments to death without pain. Mercy killing is a term derived from the Greek words ‘eu’ meaning excellent or well and ‘thanatos’ for death. When incurably ill persons ask a doctor, friend, or relative to put them to death, this is known as euthanasia. Euthanasia is commonly understood to refer to any form of physician-assisted suicide.

The definition, on the other hand, is more limited. It refers to a doctor’s decision to end a patient’s life at the patient’s request. It must be freely given, explicitly stated, and thoroughly studied, and it must have been done several times. Many problems surround this touchy subject, such as whether a terminally sick person has the right to request his death by withdrawing medical care.

Do a patient’s relatives have the right to request that his life-support system be turned off if he has been in a permanent vegetative state for so long that he has no chance of recovery? Should active euthanasia be exempt from Section 306 of the I.P.C., which prohibits aiding in suicide? The Sessions Court hears the non-bailable offense of abetment to suicide under S. 306 of the I.P.C. If proven, the penalty is ten years in prison.

This topic has always elicited numerous points of view, and it has always been a source of dispute and divergent viewpoints. Euthanasia is a contentious ethical subject about which everyone has an opinion. When it comes to enacting legislation, however, the question of euthanasia becomes much more complicated. Firstly, this is one of the few areas where the law deals with moral and ethical principles in a way that no other does.

Historical Background

Various groups or societies have accepted euthanasia in various forms throughout history. In ancient Greece and Rome, it was legal to assist people in dying or putting them to death in certain circumstances. In the Greek city of Sparta, for example, babies with serious birth abnormalities were executed. In numerous ancient communities, voluntary euthanasia for the elderly was a common practice.

Euthanasia, on the other hand, became morally and ethically repulsive when Christianity increased in power in the West and was seen as a violation of God’s gift of life. Most denominations of Christianity, Judaism, and Islam today oppose active euthanasia, however, some allow limited kinds of passive euthanasia.

Western laws have typically considered aiding someone in dying as a sort of penal homicide, based on traditional religious values (unlawful killing). Modern laws, on the other hand, have become more secular. Those who want to legalize euthanasia believe that people have the legal right to die as they see fit under individual liberty principles (such as those enshrined in the US Constitution). However, most countries (including the United States) have not fully adopted this position and continue to impose euthanasia limitations.

In the 1930s, the first organizations advocating for the legalization of voluntary euthanasia in the United States and the United Kingdom were created. These organizations remained small and had little impact for decades. However, after a highly publicized occurrence in the United States in the late 1970s, the pro-euthanasia movement acquired tremendous traction.

Karen Ann Quinlan, a 21-year-old woman, suffered a respiratory arrest in 1975, resulting in serious and irreparable brain damage and a coma. Quinlan’s parents requested that artificial life support be removed several months later after physicians warned them that their daughter’s recovery was doubtful. The hospital denied this request.

After a protracted legal fight, the Quinlans were granted permission to remove the mechanical respirator that was considered to be keeping their daughter alive in 1976. The Quinlans were allowed to disconnect the device by the New Jersey Supreme Court so that the patient could “die with dignity.” This decision sparked a flurry of debate about the scope of patients’ rights to choose when and how they die. (Despite the fact that Quinlan’s respirator was removed in 1976, she began to breathe on her own.) She didn’t regain consciousness until 1985 when she died.)

The case of Nancy B. v. Hotel-Dieu de Quebec^[1] in Canada in the early 1990s played a similar effect in raising public awareness about the concerns surrounding euthanasia. In this case, a young woman who was paralysed due to the rare condition Guillain-Barré syndrome requested that the artificial breathing device that kept her alive be detached. In January 1992, a Québec superior court judge ordered the woman’s physician to remove the respirator, concluding that such refusal of treatment was legal.

Legal Status of Euthanasia across the World

Active in practically every country, euthanasia is prohibited. Suicide or murder is considered unethical by most religious groups. Some proponents of euthanasia argue that it permits a person to die with dignity rather than being artificially maintained alive. Withholding most sorts of medical treatment is an option for euthanasia. It is usually lawful, and it allows the sufferer to die naturally.

Certain kinds of euthanasia have become legal as laws have moved from their traditional religious foundations. In general, rules seek to distinguish between passive euthanasia (the act of allowing someone to die) and active euthanasia (the act of murdering someone) (generally associated with killing a person). While passive euthanasia is often permitted, aggressive euthanasia is usually outlawed.

The management of individuals in a persistent vegetative state, or those who have lost their higher brain functions but can still breathe without assistance, is a major medical issue. Both relatives and doctors are concerned about the question of whether or not such people should be permitted to die. They may believe that preserving the life of such a patient is pointless because he/she would never be able to live a regular life. Families frequently want for the end of such a life so that they can grieve for the loss of a loved one. A court of law has approved the choice to deny nourishment to such patients in a few instances.

If euthanasia is justified (and it is legal), it is carried out.

(1) The patient makes a voluntary, informed, and stable request

(2) The patient is in excruciating pain with no hope of relief

(3) The physician consults with another physician

(4) The physician executing the euthanasia operation thoroughly analyses the patient’s situation.

Officials estimate that euthanasia accounts for roughly 2% of all fatalities in the Netherlands each year^[2].

America

Both suicide and aided suicide have been punished or otherwise disapproved in the Anglo-American common law system. New York established the first American statute explicitly prohibiting assisted suicide in 1828, and many of the new states and territories followed suit. Assisted suicide bans in the states have been re-examined and confirmed in recent years^[3]. Swift stated in his early 19th-century treatise on Connecticut law that if one counsels another to commit suicide and the other commits suicide as a result of the advice, the adviser is guilty of murder, as was the similar principle that the consent of a homicide victim is “wholly immaterial to the guilt of the person who caused his death.”

The right to life and to privacy is not only precious in the eyes of the common law but it has also been pronounced completely unconstitutional by the United States Supreme Court in the cases of Washington v. Glucksber and Sacco v. Quill P^[4]. In these situations, the provision of physician-assisted suicide has been found to be consistent with the US Constitution.

Despite the fact that active euthanasia is prohibited in the United States, individuals do have the choice to decline medical treatment. Similarly, the common request for various actions to alleviate their pain and suffering, including attempts to accelerate their death, is widespread. Death caused in such situations is considered passive euthanasia, which is legal.

Only four states in the United States have euthanasia provisions in their legal systems. Oregon, Washington, Montana, and Texas are among the four states. ^[5]With the Death with Dignity Act of 1994, Oregon became the first state to enact euthanasia legislation. The state of Washington was the second to legalise physician-assisted death. Montana’s state judge, not the legislature, legalised physician-assisted dying.

The Montana Supreme Court issued its decision in Baxter v. Montana^[6], allowing physicians to prescribe fatal drugs. “Nothing in Montana Supreme Court precedent or Montana statutes indicates that physician aid in dying is against public policy,” the court concluded. The court decision recognises that it is Montana’s public policy to preserve competent dying patients’ right to choose assisted suicide, and it makes plain that there is no basis to prosecute doctors who give it. The Texas Futile Care Law was adopted in 1999 to encourage Texas hospitals and doctors to withdraw life support measures such as mechanical breathing from terminally ill patients when such care is deemed futile and inappropriate.

The Oregon statute establishes rules for clinicians to follow when indicating death to terminally ill patients in a humane manner. An adult who is capable, and is a resident of Oregon, also has been determined to be suffering from a terminal disease by the attending physician and consulting physician, and who voluntarily expressed his/her wish to die, may make a written appeal for medication to end his/her life dignified manner in accordance with law^[7].

A minimum of two physicians must agree that the patient has an illness that may cause death within six months before the patient is qualified under the statute. The physician must provide the patient the opportunity to withdraw his request, and the patient must be competent, aware of the implications of his decision, and not suffering from a mental illness. Many other requirements are included in Oregon’s statute, including a 15-day waiting period from the request to get the drug, the form of a request, witness credentials, and medical obligations.

Under Oregon law, the patient is only entitled to a prescription for life-ending drugs. The Act forbids a physician or anyone else from using fatal injection, mercy killing, or active euthanasia to end a patient’s life. In other words, the Act permits physician-assisted suicide by deadly prescription but expressly prohibits active euthanasia.

Suicide or attempted suicide is a crime in American jurisdictions, and there is no right to assisted suicide under the US Constitution or state constitutional provisions; to date, no court has upheld the right to assisted suicide.

United Kingdom

In the United Kingdom, euthanasia is illegal, although courts have taken a lenient approach, not prosecuting doctors for assisted suicide under the Suicide Act since its inception in 1961. Currently, in the United Kingdom, anyone caught assisting suicide or attempting suicide is breaching the law and can be prosecuted. It is an offence to aid, abet, counsel, or procure the suicide of another or an attempt by another to commit suicide under Section 2(1) of the Suicide Act, 1961.

However, it is not a crime for an individual to commit suicide by their own hand, that is, a person who is capable of committing suicide will not be considered to have committed a crime if they physically take a substance that will cause his death.  When a person has to rely on someone else to help them take tablets, inject prescriptions, and so on, the challenges grow more complicated, and this is when the criminal aspect enters the picture. There has been a lot of political criticism to the current UK statute on assisted suicide, but no substantial changes have been made yet.

Several attempts have been made in the past to pass legislation supporting and opposing euthanasia, but they have all failed. The Doctor Assisted Dying Bill was defeated in 1997. The Medical Treatment (Prevention of Euthanasia) Bill, introduced in 2000, met the same fate. Depending on the circumstances, voluntary and involuntary euthanasia may be classified as voluntary manslaughter (when someone kills another but the circumstances partially justify their actions) or murder. Almost typically, involuntary euthanasia is seen as murder.

In the case of R. v. Director of Public Prosecutions ex p Dianne Pretty^[8], the House of Lords refused Dianne Pretty’s application to compel the director of public prosecutions to give her and her husband prior assurance that her husband would not be prosecuted^[9] as an aider and abettor under section 2(1) of the Suicide Act, 1961^[10], if he assisted her in committing suicide sometime in the not-too-distant future when she would have clearly communicated her Motor neuron illness was a problem for Dianne Pretty.

She knew she only had a short time left on this earth, and she wanted to die when and how she wanted. Because of her physical inability, she would need help to commit suicide. To meet her most basic requirements, she was fully reliant on others, notably her husband. Her initial request to the court was for the director of public prosecutions to allow her husband to help her in ending her life because she was physically unable of doing herself. This request was denied, and Pretty filed a petition with the court to have the decision overturned.

A judicial review was conducted, and the case was eventually referred to the House of Lords. Pretty would have been legally able to commit suicide under the Suicide Act of 1961 if she had the physical capability. If her spouse supported her, would he be shielded from prosecution under section 2(1) of the Act as a person aiding and abetting a suicide? She also claimed that refusing to allow her would be a violation of her right to privacy and family life.

In this case, the House of Lords stated that the United Kingdom is not bound by any positive commitment, ensuring that competent, terminally ill, the person who wishes but is unable to take his or her own life should be entitled to seek the assistance of another without that other being exposed to the risk of prosecution.

Switzerland

Euthanasia is banned in Switzerland, although assisted suicide is not a crime if done for altruistic reasons. Because assisted suicide is lawful, anyone can help a physically ill person commit suicide in order to alleviate their suffering. There are no safeguards in place, no residence restrictions, and no inquiry will take place unless someone reports it to the authorities. Assisted suicide, on the other hand, is not often practiced in Switzerland.

According to Swiss law, anyone who, for selfish reasons, induces another person to commit suicide, whether successful or attempted, will be prosecuted. “Selfish intentions” is the crucial phrase here. As a result, if a person who aids and abets suicide successfully asserts that he is doing it unselfishly, he will not be prosecuted in Switzerland. While this result in the de facto legalisation of assisted suicide but is not legal, only unpunishable unless a selfish motive is proven.

Belgium

In 2002, Belgium made euthanasia and assisted suicide lawful. It does, however, restrict euthanasia to capable adults and emancipated youngsters. A permanent committee has been formed to keep track of these fatalities, and the committee must adopt an official form that physicians must fill out each time they aid a suicide. According to the law, a patient must request euthanasia at least one month before it is carried out, and if the patient is not in the worst stages of terminal illness, a second opinion must be obtained.

Australia

With the passage of the Rights of the Terminally Ill Act, 1996, Australia has become the first country in the world to^[11] legalize euthanasia. In the case of Wake v. Northern Territory of Australia, the Supreme Court of Northern Territory of Australia ruled that it was legal. After a brief period in which the practice was permitted in Australia, the government passed legislation making voluntary euthanasia and assisted suicide illegal in all of the country’s states and territories.

Canada

Patients in Canada have the choice to decline life-sustaining therapies, but they cannot request active euthanasia or assisted suicide. Physician-assisted suicide is prohibited in Canada. The Criminal Code of Canada’s section 241 (b) Swe Rodriguez v. British Columbia (Attorney General) is a significant Canadian Supreme Court judgment in this regard, in which a woman diagnosed with Amyotrophic Lateral Sclerosis (ALS) asked the Canadian Supreme Court to enable someone to help her end her life.

Legal Status of euthanasia and assisted suicide in India

Section 306 of the Indian Penal Code deals with abetment to suicide.

Suicide has not been deemed a crime under the Indian Penal Code, presumably because if a person successfully commits suicide, he is no longer alive to be prosecuted, and the crime ceases to exist with him. Suicide attempts, on the other hand, are punished under Sections 305 and 306 of the IPC. These parts are founded on acceptable public policy to prevent other people from being involved, instigating, or assisting in the death of a person. It deals with the scenarios and threats that death baiters pose.

There must be active suggestion or encouragement by the accused to a person to commit the act to make a case of abetment. The accused’s wilful involvement in helping and encouraging the act of suicide is the key element of the crime. Any omission or lack of any of them works against his indictment. The concomitant indices of abetment include contiguity, guilt, and complicity of the indictable acts or omissions. As a result, it is Section 306 that makes continuous incitement to suicide illegal. It must be proven that the other person has successfully committed suicide before a person can be convicted of abetment of suicide.

The deceased in Wazir Chand v. State of Haryana^[12] was a newly married woman who died of burn injuries. The deceased’s husband and father-in-law were accused of abetting the act. The prosecution claimed that family members spilled kerosene oil on the newlywed woman, causing her to become burned. The defendant claimed that the burn was the result of an accident. The Supreme Court dismissed the defendant’s argument but set out the conviction under Section 306 because the prosecution has failed to prove beyond reasonable doubt that the deceased committed suicide. Instead, it found them guilty under IPC Section 498A.

The dead in Gurbachan Singh v. Satpal Singh^[13] was another newlywed woman who died of burn injuries. In this case, however, there was enough evidence to show incidents of harassment and torture for bringing in insufficient dowry. In addition, the mother was suspected of having an illegitimate child. The woman committed herself by setting herself on fire as a result of the aforementioned circumstances. The provocations presented to the deceased were deemed grave and terrible enough to cause an ordinary Indian woman to commit suicide. According to the evidence, none of her in-laws attempted to save her from burn injuries. As a result of the facts of the case, the defendants were found guilty of aiding and abetting the suicide.

Passive Euthanasia and Section 306 of IPC

Though the law is in place in certain nations, it is not in India, where euthanasia and physician-assisted suicide are prohibited. A physician who administers lethal medications to another individual for him to end his life will be accountable for aiding and abetting his suicide. Suicide abetment (section 306, IPC) and suicide attempt (section 309, IPC) are both criminal offenses in India. In contrast, attempted suicide is not a felony in many nations, including the United States and the United Kingdom.

However, a doctor who tries to kill a patient at his request will be charged u/sec.304 for negligent homicide not amounting to murder. (1) section 92 of the IPC would strike down cases of non-voluntary and involuntary euthanasia, making them illegal. As early as 1971, the Indian law commission proposed the abolition of the rule in its 42nd report. The part had been considered harsh and unreasonable by the commission.

In Gian Kaur v. State of Punjab^[14], the Supreme Court’s constitution bench ruled that both euthanasia and assisted suicide are illegal in India. That judgment overturned the same court’s earlier two-judge bench decision in P. Rathinam v. Union of India^[15].” The court ruled in Gian Kaur’s case that the right to life guaranteed by Article 21 of the Constitution did not extend to the right to die. In this case, a parallel was drawn between euthanasia and suicide (as a passing remark, or in legal terminology, as obiter dictum). In this case, the SC upheld the House of Lords’ decision in Airedale, stating that euthanasia could only be legalized by legislation.

Physician-aided suicide (which is lawful in a few countries) is prohibited in India, and doctors may be held accountable for aiding suicide. Even if section 309 of the IPC were repealed, abetment to suicide would remain a criminal offense under the IPC.

Passive euthanasia is permitted in India, despite the fact that active euthanasia is prohibited. The apex court of India legalized passive euthanasia by withdrawing life support from people in a permanent vegetative state in Aruna Ramchandra Shanbaug v. Union of India^[16] on March 7, 2011. The ruling was reached as part of a verdict in the case of Aruna Shanbaug, who has been in a vegetative state at King Edward Memorial Hospital for 37 years.

The court stated that because India does not have a law regulating euthanasia, its ruling becomes the provision of the land until the Indian Parliament passes appropriate legislation. While dismissing Pinki Virani’s (Aruna’s friend) request for euthanasia, the court established standards for passive euthanasia.

The following guidelines were laid down:

1. A decision to stop life support must be made by the parents, spouse, or any other close relative, or, in the absence of any of them, by a person or group of people acting as a next friend. It can also be administered by the doctors who are caring for the patient. The decision must, however, be made in the best interests of the patient.
2. Even if a decision to withdraw life support is made by close relatives, doctors, or a close friend, the decision must be approved by the High Court involved.
3. When such an application is filed, the chief justice of the relevant high court should immediately convene a bench of at least two justices to decide whether or not to give approval. A committee of reputable doctors will be appointed by the bench and will provide a report on the patient’s condition. A notice about the report should be sent to close relatives and the state before the judgment is handed down. The high court can reach a decision after hearing both sides.

The Supreme Court issued an important remark on attempted suicide in Aruna Shanbaug’s “right to die” case. It encouraged Parliament to consider decriminalizing the attempt to commit suicide, stating that a person who takes his or her own life needs support more than punishment. Section 309 of the Indian Penal Code would be repealed as a result.

In a broad sense, the Supreme Court’s decision in Aruna Shanbaug’s case appears to have allowed passive euthanasia for terminally ill patients in certain circumstances. In medical terms, passive euthanasia refers to the removal of life support and therapy and allowing nature to take its course. The active/passive distinction is expressed as a distinction between ‘killing’ and ‘letting die,’ according to which it is morally wrong to willfully take a life, but it is acceptable to allow the inevitable to occur by withdrawing or withholding treatment.

Legalizing Euthanasia

Although the concept of euthanasia is fertile, making it legal seems illusionary for a number of countries. Strong campaigns against legalization have been mounted by religious bodies, medical societies, politicians, and legislators. There is no indication that the views of religious groups and fundamentalists will change in the near future. They rest on the principle of “the sanctity of life”. The religious and medical groups, in general, find that there is no need to legislate for euthanasia, since adequate pain control and passive euthanasia can be used instead, and are already morally accepted.

Here, it may be noted that India is a secular country; so one needs to think rationally and humanly rather than religiously and morally. While religions and morality do have an influence, euthanasia and assisted suicide are wanting in the context of the commercialization of the medical treatment. Medical costs are unaffordable for the required medical treatment. To be doubtful whether the patient will improve in any way or remain the same.

And every incurable condition entails a significant degree of danger and financial investment that must not be overlooked. The apex court’s ruling in Arana Shanbaug ignores the important factor of India’s costly and unavailable medical treatment. The present trend is toward privatization of healthcare centres including government hospitals that charge heavy amounts from their patients in the name of treatment and tests. The extreme commercialization of healthcare completely ignores the basic ethics of medical treatment.

Conclusion

Euthanasia, in medical practice, generally refers to withdrawing life support and treatment and letting nature take its course. The active/passive distinction is couched in terms of a dichotomy between ‘killing’ and ‘letting die,’ which stipulates that it is morally wrong to intentionally take a life but permissible to allow the inevitable to happen by withdrawing or withholding treatment. Though attempted suicide is a crime in India, euthanasia merits serious consideration.

The following statistics cannot be ignored-about10 percent of its people are disabled, and more than 10 percent are suffering from the problem of aging, as advances in medicine and health care have served to prolong life so that the percentage of the aged in the total population is constantly increasing. Severe physical and mental problems are common among the elderly; what is more important, more than 90 percent of the medical attention a person requires is during the last few years of his/her life. Why can’t we allow those disabled, terminally ill, and all those who suffer from the problem of aging with no productive life to die honorable death if that is what they wish and ask for?

In addition to this category, many more are not only too old but suffer from numerous diseases like asthma, diabetes, cancer, arthritis, and brain tumor. Such people are quite aware that their quality of life will worsen day by day. Many of them often do not have family members to look after them. Thus, legal and official death may be more than a welcome solution for those who don’t want to be a burden on the younger generation or those who do not have caretakers to look after them sympathetically.

Apart from this, there is a long waiting list for hearts, kidneys, livers, and other necessary organs that can save the lives of people who can be saved. Doctor-assisted suicide allows physicians to preserve vital organs that can be donated to others (assuming the patients are organ donors). However, if certain diseases are allowed to run their entire course, the organs may weaken or cease functioning. In the context of all these, euthanasia and assisted suicide merit special consideration.

Endnotes

^[1] Canada. Quebec. Superior Court. Nancy B. v. Hôtel-Dieu de Québec. Dom Law Rep. 1992 Jan 6;86:385-95. PMID: 12041074.

^[2] India, legal S. (n.d.). Euthanasia – S.306, IPC Constitutionally Valid. Euthanasia – S.306, IPC Constitutionally Valid. www.legalserviceindia.com. Retrieved April 16, 2022, from https://www.legalserviceindia.com/article/l120-Euthanasia.html

^[3] Toolbox. (n.d.). LEGAL INFORMATION INSTITUTION, Cornell law School. www.law.cornell.edu. Retrieved April 16, 2022, from https://www.law.cornell.edu/supct/html/96-110.ZO.html

^[4] 521 U.S. 702 (1997)

^[5] Death With Dignity – Sufjan Stevens. (2018, December 13). Word Choices: Death With Dignity – Sufjan Stevens. wordchoicesoprfhs.blogspot.com. Retrieved April 16, 2022, from https://wordchoicesoprfhs.blogspot.com/2018/12/death-with-dignity-sufjan-stevens.html

^[6] MT DA 09-0051, 2009 MT 449

^[7] http://www.szasz.com/undergraduate/mathis.pdf

^[8] Diane Pretty v Director of Public Prosecutions [2001] UKHL 61 (HL)

^[9] Pedain, A. (2003, June 27). The Human Rights Dimension of the Diane Pretty Case | The Cambridge Law Journal | Cambridge Core. Cambridge Core. www.cambridge.org. Retrieved April 16, 2022, from https://www.cambridge.org/core/journals/cambridge-law-journal/article/abs/human-rights-dimension-of-the-diane-pretty-case/053C92D6AC0B3C22DF2CDED958482C6D

^[10] Law Reform (Year and a Day Rule) Act 1996. (n.d.). Law Reform (Year and a Day Rule) Act 1996. www.legislation.gov.uk. Retrieved April 16, 2022, from https://www.legislation.gov.uk/ukpga/1996/19/section/2

^[11]  Rabson, Mia, and Mia Rabson. “Gender Analysis Overdue.” Winnipeg Free Press, F.P. Canadian Newspapers Limited Partnership, 24 Mar. 2017, p. A9.

^[12] Wazir Chand v. State of Haryana, (1989) 1 SCC 244

^[13] Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445

^[14] State of Punjab v. Gian Kaur, 1998 SCC (Cri) 942

^[15] P. Rathinam v. Union of India, (1994) 3 SCC 394

^[16] Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454

This article has been submitted by Anurag Pattnaik, a student of law at XIM University, Bhubaneswar.